Thursday, February 13, 2014

It's The Law

(via Never Yet Melted)
At least that was the President and other Democrats repeatedly said last year when Republicans spoke of repealing or not funding the Affordable Care Act, most prominently during the failed attempt at defunding in late September.

But that's old news.  Now the law is whatever the President says it is regardless of the actual legislative language (and don't forget that people working less is good as long as someone else is paying for it).  The latest of many examples is the temporary exemption from the ACA employer mandate for businesses employing between 50 and 99 people, an exemption for which there is simply no provision in the law.  Or, as Charles W Cooke at National Review Online wrote "Obama Frees America From The Tyranny Of Law".   

If you don't get what Cooke is writing about, he created a helpful thought experiment in another piece entitled "Democrat, Media, Slam President Romney Over Healthcare Changes: Worst Abuse of Executive Power Since Bush Admin, Dems Say".  Here's an excerpt but you should read the whole thing as it gets even better:

Washington D. C. — In a move certain to please his conservative supporters and infuriate his critics, President Romney announced this afternoon that his administration would make yet another change to the Patient Protection and Affordable Care Act. In a terse release, posted without fanfare to the Department of Health and Human Services website, officials revealed that the law’s employer mandate would be suspended until 2016 for all businesses that employ between 50 and 99 people.

The move comes hot on the heels of news that the agency would not be enforcing the provisions in the law that require Americans to buy approved health insurance until after the next election. Now, as then, a simple explanation was forthcoming. “The president won,” a White House aide told National Review Online. “His disdain for the law was ratified by the people. Now he’s going to fundamentally transform it.”

“This is an utter disgrace,” griped Senator Chuck Schumer (D., N.Y.). “This law was passed through Congress, signed by the previous president, and upheld by the Supreme Court.”

Schumer’s colleague, Senator Harry Reid of Nevada, described the Romney administration’s behavior as “the nuclear option.” “This abuse of executive discretion is beyond the pale,” Reid fumed. “I’m a lawyer, I know.”

For a THC-composed example of the utility of such thought-experiments see Did You See The Frontpage NY Times Story on Jon Corzine?  

To compound its lawlessness the implementing regulation issued by the Internal Revenue Service requires that businesses can only obtain the exemption if they certify under penalty of perjury that they have not taken any actions to reduce the number of employees in order to qualify for the exemption.  In other words, you can only qualify for the ACA exemption if you certify you have taken no actions in order to qualify for the exemption!  And, by the way, the legal authority for such certification  does not exist in the law - they're just making stuff up, folks.  Now you have an illegal action by the President, followed by a regulatory requirement with no legislative justification which if you violate makes you potentially subject to criminal prosecution!  You can find the entire regulation here (all 227 pages of it).

The proliferating exemptions and "enforcement discretion" actions of the Administrations demonstrate how desperate it is to extract itself from the morass it created for itself with the ACA.  THC thinks the ACA is bad policy but at least the proponents argued that its component parts worked together to provide coverage and control costs.  The ad hoc demolition of the law by the Administration tears apart even that rationale as the remnants of the ACA simply make no sense anymore; it is an incoherent mess (to be precise, THC always thought it was incoherent, but now it's incoherent even on the terms of its proponents).  The Administration's strategy seems to have been reduced to doing whatever it needs to survive the mid-term elections, consequences be damned.  As David Harsanyi observes, Obamacare Is Just Another Word For Laws We Ignore Together.

But the problems created by the Administration's belief that it can selectively apply and enforce the ACA and other laws, including immigration laws, poses bigger problems for our representative democracy than just those involving Obamacare.

Those problems are part of the progression THC has watched as we've passed from the dismal and depressing years of the Bush administration to the bizarro world of the Obama administration.

There are consequences associated with the Administration's actions:

1.  They destroy the trust needed for political compromise, a necessary ingredient for stability in politics and to sustain our constitutional structure.  Most legislation is crafted with some degree of compromise.  You give something to get something.  Once it is in place it is the law and the government authorities will enforce all its provisions in good faith.  From its bastard birth, as the only major piece of social legislation in American history passed on a partisan basis (both Houses even refusing to hold hearings on Republican alternatives)*, the ACA has been a problem-child in this respect.  But the problem has been greatly compounded by the Administration's implementation approach (as well as its unilateral actions to suspend enforcement of other statutes).

[* Note:  Although the votes in favor of the ACA were all from one party, the opposition in the House was bipartisan.]

Think of it this way.  If you are interested in negotiating a solution to a problem (immigration, for instance) you have provisions you will want in the bill and provisions you may oppose.  In any compromise both sides get and give up some things.  However, if you fear that the provisions important to you that were incorporated into the final legislation are not going to be implemented or enforced by the Administration of an opposing party, why would you be inclined to compromise?  You would be a fool to do so, since you would be giving up something and not getting what you were promised in return. THC would not trust this Administration, or any administration, that had this pattern of behavior.

2. They lower the bar, making this behavior more acceptable for future Administrations, regardless of party.  That's human nature (and politics as well).  Once barriers are broken it is hard to rebuild them and the voices of the "turn-about is fair play crowd" may prevail (they are already shouting, see President Obama Is Giving Conservatives All The Tools They Need To Transform The Country).  From a policy perspective, THC might like to see future Administration not enforce certain provisions of certain laws but thinks this would be a bad choice as a constitutional and governance matter.

On the other hand, THC does look forward to 2017 and President Walker's 30-year "temporary" suspension of the remaining provisions of Obamacare as well as the new enforcement forbearance regarding the provisions of the Tax Code!

In other good news, THC thinks that this exemption along with the rest of the adhocracy around implementation of the ACA ensures that the Administration's legal assault on the rebellious Little Sisters of the Poor and the Hobby Lobby will fail.  Under the provisions of the Religious Freedom Restoration Act, the AdministrationAn Image SlideshowAn Image Slideshow must show that when it imposes a "substantial burden" on the free exercise of religion it must show a "compelling government interest".  Given the widespread use of exemptions given to millions of others it seems that the Administration now has an insurmountable burden in demonstrating why such exemptions are not proper in these cases.

Despite the "good news" something is terribly awry with this Administration and it is pathetic to see so little media interest in the fundamental issue of the legality of the steps taken by the President and the lack of interest in thinking about its impact on the ability of the American constitutional structure to operate.

UPDATE In this interview George Washington Law School University professor Jonathan Turley explains why the President's approach poses a danger regardless of your political beliefs.

TURLEY: I'm afraid this is beginning to border on a cult of personality for people on the left. I happen to agree with many of President Obama's policies, but in our system it is often as important how you do something as what you do.

And I think that many people will look back at this period in history and see nothing but confusion as to why people remained so silent when the president asserted these types of unilateral actions. You have a president who is claiming the right to basically rewrite or ignore or negate federal laws. That is a dangerous thing. It has nothing to do with the policies; it has to do with politics.

KELLY: Why is it so dangerous? What' so bad that will come of this?

TURLEY: Well, you know, a system in which a single individual is allowed to rewrite legislation or ignore legislation is a system that borders on authoritarianism. I don't believe that we are that system yet. But we cannot ignore that we're beginning to ignore a system that is a pretense of democracy if a president is allowed to take a law and just simply say, 'I'm going to ignore this,' or, 'I'm going to shift funds that weren't appropriated by Congress into this area.'

The president's State of the Union indicated this type of unilateralism that he has adopted as a policy. Now, many people view that as somehow empowering. In my view, it's dangerous, that is what he is suggesting is to essentially put our system off line. This is not the first time that convenience has become the enemy of principle. But we've never seen it to this extent. 

No comments:

Post a Comment